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Belcher v. State (5/6/2016) ap-2499

Belcher v. State (5/6/2016) ap-2499

                                                      NOTICE
  

         The text of this opinion can be corrected before the opinion is published in the  

         Pacific Reporter.  Readers are encouraged to bring typographical or other formal  

         errors to the attention of the Clerk of the Appellate Courts:  



                                   303 K Street, Anchorage, Alaska  99501
  

                                              Fax:  (907) 264-0878
  

                                      E-mail:  corrections @ akcourts.us
  



                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA  



ISAIAH TERMAINE BELCHER,  

                                                                     Court of Appeals No. A-11632  

                                     Appellant,                     Trial Court No. 3PA-12-3212 CR  



                           v.  

                                                                              O  P  I  N  I  O  N  

STATE OF ALASKA,  



                                     Appellee.                           No. 2499 - May 6, 2016  



                                     

                  Appeal from the Superior Court, Third Judicial District, Palmer,  

                  Pat L. Douglass, Judge.  



                  Appearances: Nancy Driscoll Stroup, Attorney at Law, Palmer,  

                                                                                  

                  for  the  Appellant.        Timothy  W.  Terrell,  Assistant  Attorney  

                                                           

                  General, Office of Criminal Appeals, Anchorage, and Craig W.  

                                            

                  Richards, Attorney General, Juneau, for the Appellee.  

                                             



                  Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,  

                                                         

                  Superior Court Judge. *  

                                                   



                  Judge SUDDOCK.  



     *   Sitting  by   assignment  made  pursuant  to  Article  IV,  Section  16  of   the  Alaska  



Constitution and Administrative Rule 24(d).  


----------------------- Page 2-----------------------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                        1  

                                                                          A jury found Isaiah Termaine Belcher guilty of second-degree theft                                                                                                                                                                                                                                                                                                                                for  



 stealing a television and a Blu-ray DVD player from the Wasilla Walmart.                                                                                                                                                                                                                                                                                                                                                   At trial, the                                    



 State offered evidence of Belcher's prior conviction for third-degree theft. Over defense                                                                                                                                                                                                                                                                                                                                                          



 objection,   Superior   Court   Judge   Pat   L.   Douglass   admitted  evidence   of   the   prior  



 conviction as probative of identity, intent, common scheme or plan, and absence of                                                                                                                                                                                                                                                                                                                                                                                             



mistake.  



                                                                          On appeal, Belcher argues that theevidencewasinadmissibleunder Alaska                                                                                                                                                                                                                                                                                                         



Evidence Rule 404(b)(1).                                                                                                                              He   is  correct; as explained below,                                                                                                                                                                           the evidence had                                                                                       no  



relevance beyond establishing Belcher's character as a thief. But the error was harmless                                                                                                                                                                                                                                                                                                                                                     



because the State presented overwhelming evidence of guilt.                                                                                                                                                                                                                                                       



                                     Background facts   



                                                                          On November 23, 2012 - "Black Friday" - Walmart loss-prevention                                                                                                                                                                                                                                                              



 officer Dean Brown heard the electronic alarm system at the doorway go off, and shortly                                                                                                                                                                                                                                                                                                                                                               



thereafter he observed Belcher walking through the store's vestibule with a television in                                                                                                                                                                                                                                                                                                                                                                                          



his cart.                                    Brown followed Belcher outside the store, and Belcher turned and approached                                                                                                                                                                                                                                                                                                      



him.   Belcher told Brown that the alarm had triggered because of DVDs in his cart that                                                                                                                                                                                                                                                                                                                                                                                  



he had forgotten to pay for. He explained that after the alarm sounded, he decided he no                                                                                                                                                                                                                                                                                                                                                                                        



longer wanted them and returned them to the cashier.                                                                                                                                                                                                        



                                                                          According to Brown's testimony at trial, he expressed skepticism about                                                                                                                                                                                                                                                                                                              



Belcher's story and asked to see Belcher's receipt.                                                                                                                                                                                                                                              Belcher did not have one.                                                                                                                             When  



Brown asked Belcher how he would return the merchandise if there was something                                                                                                                                                                                                                                                                                                                                                    



wrong with it, Belcher replied that he would just pawn it instead of returning it to the                                                                                                                                                                                                                                                                                                                                                                                    



 store.    



                   1                 Former AS 11.46.130(a)(1).  



                                                                                                                                                                                                                                   - 2 -                                                                                                                                                                                                                               2499
  


----------------------- Page 3-----------------------

                                Brown jotted identifying data from Belcher's driver's license and vehicle                                                                                       



license plate number. After                                       reviewing surveillance footage and determining that Belcher  



had not paid for the merchandise, Brown contacted the Wasilla Police Department to                                                                                            



report the theft.                      Officer Patrick Kruchowski responded to the call, and Brown told him                                                                                             



that Belcher had stolen a television and a Blu-ray DVD player valued at $713 and $98,                                                                                                                  



respectively.   

                                The State subsequently indicted Belcher for second-degree theft.                                                                                             2  



                Proceedings  



                                                                                                                                                                                            

                                The  State  filed  a  notice  of  its  intent  to  introduce  Belcher's  year-old  



                                                                                                                                                                                                 

conviction for third-degree theft.  According to police reports attached to the notice,  



                                                                                                                                                                                          

Anchorage police officers had received a report of attempted shoplifting (not involving  



                                                                                                                                                                                                        

Belcher) from a Fred Meyer store.   One week later, Anchorage police stopped a car  



                                                                                                                         

belonging to one of the suspects in that incident.  



                                                                                                                                                                                                            

                                Belcher was in the back seat of the vehicle, along with $895 worth of  



                                                                                                                                                                                                       

merchandise later determined to be stolen from Bed Bath & Beyond.   Belcher told  



                                                                                                                                    

Officer Boaz Gionson that the items were his and that he had bought them, but he told  



                                                                                                                                                                                                      

another officer, Robin Nave, that the items did not belong to him.  Officer Nave later  



                                                                                                                                                                                                

received a phone call from Belcher, requesting return of the items.  Belcher told Officer  



                                                                                                                                                                                                          

Nave that he had purchased the items without bothering to keep the receipt because the  



                                                                                                                                                                                                         

items were intended as Christmas gifts. Officer Nave did not return the merchandise, and  



                                                                                                                                                                                

Belcher eventually pled guilty to third-degree theft of that merchandise.  



        2       Former AS 11.46.130(a)(1) (2012) (defining the value of second-degree theft as theft   



of property or services with a value of $500 to $25,000).  



                                                                                                   -  3 -                                                                                              2499
  


----------------------- Page 4-----------------------

                    Belcher  objected  to  the  State's  notice  of  intent  to  offer  this  evidence,  

                                                                                                                      



arguing that the matter had no relevance beyond Belcher's propensity to shoplift and was  

                                                                                                                               



highly prejudicial. The judge deferred ruling on the matter until hearing the State's case  

                                                                                                                               



and the defense theory of the case.  

                                                       



                    At trial, loss-prevention officer Brown showed the jury surveillance video  

                                                                                                                             



footage of Belcher.  The video first depicted Belcher placing the television and Blu-ray  

                                                                                                                         



DVD player into his shopping cart. It also showed him selecting a number of DVDs and  

                                                                                                                                



then walking past the cash registers into the store's vestibule.  

                                                                                                



                    The video then depicted Belcher leaving the shopping cart in the vestibule  

                                                                                                                                      



(after the store's alarm system sounded) while he returned the DVDs to a cash register  

                                                                                                                          



station.       It  then  showed  Belcher  returning  to  his  cart  and  exiting  the  store.                                 The  

                                                                                                                               



surveillancevideoalso showed Brownemerging fromthe store's securityoffice, Belcher  

                                                                                                                          



and Brown talking outside the store, and Brown following Belcher to his car to record  

                                                                                                                  



his license plate number.  

                                        



                    Duringcross-examination, Belcher'sdefenseattorneyinquired whether the  

                                                                                                                                 



low resolution of the video left doubt that its subject was Belcher. Brown responded that  

                                                                                                                                



the resolution was better on his computer and also noted that he had the benefit of an in- 

                                                                                                                                 



person encounter with Belcher, which the video recorded.  When the defense inquired  

                                                                                                                        



whether  Brown  had  accurately  recorded  Belcher's  license  plate  number,  Brown  

                                                                                                                          



responded that he had "[w]alked right up to the bumper."  

                                                                          



                    Brown  also  explained  that  he  checked  Walmart's  computer  system to  

                                                                                                                                  



ensure that no television nor Blu-ray DVD player had been sold while Belcher was  

                                                                                                                               



present  in  the  store.            The  defense  attorney  suggested  that  Brown  may  have  mis- 

                                                                                                                             



remembered which items were in Belcher's cart, thus explaining the lack of purchase  

                                                                                                                       



history.  Brown responded that the store sold few brands of televisions and that he had  

                                                                                                                                



carefully noted and searched for the specific television he saw in Brown's shopping cart.  

                                                                                                                                      



                                                               - 4 -                                                          2499
  


----------------------- Page 5-----------------------

                    After Brown and Officer Kruchowski testified, the prosecutor renewed her  

                                                                                                                                 



request to introduce evidence of Belcher's prior theft conviction.  The defense attorney  

                                                                                                                         



argued that the conviction was more prejudicial than probative under Alaska Evidence  

                                                                                                                       



Rule 403.  

         



                    The judge ruled that evidence of the prior crime was admissible evidence  

                                                                                                                        



because, she concluded, both identity and mistake were part of the defense case, and she  

                                                                                                                                



found the probative value outweighed the prejudicial effect of the evidence.  But she  

                                                                                                                                



limited evidence of the prior theft to Belcher's claim that he had bought the merchandise  

                                                                                                                  



and did not have a receipt for it. Subsequently, Officers Gionson and Nave testified, and  

                                                                                                                                



the judgment for Belcher's prior conviction was admitted into evidence.  

                                                                                                 



                    Following  the  parties'  final  arguments,  the  judge  read  the  jury  an  

                                                                                                                                



instructionlimiting thepurposes for which theprior-crimeevidencecould beconsidered:  

                                                                                                                                      



specifically, to the issues of identity, intent, common scheme or plan, or absence of  

                                                                                                                                  



mistake.  The jury convicted Belcher of second-degree theft.  This appeal followed.  

                                                                                                                                  



          The trial court erred by admitting the evidence of Belcher's prior theft  

                                                                                                                



                    The trial court admitted the evidence of Belcher's prior theft under several  

                                                                                                                          



different theories.  We will address those theories one by one, explaining why none of  

                                                                                                                                  



them are supported by the record.  

                                                      



                    First,  the  trial  court  admitted  this  evidence  as  probative  of  Belcher's  

                                                                                                                      



identity. The State concedes that this was erroneous, and we find the State's concession  

                                                                                                                    



well founded.  

         



                                                               -  5 -                                                         2499
  


----------------------- Page 6-----------------------

                      Prior-crime evidence may only be admitted to                             proveidentitywhereidentity        



                3  

is in issue.                                                                                                            

                   Though Belcher's attorney briefly questioned Brown about his identification  



                                                                                                                          

of Belcher by pointing out the grainy quality of the surveillance video and questioning  



                                                                                                                

him about accurately recording Belcher's license plate number, this isolated exchange  



                                                                                                                                       

did not meaningfully put identity in issue. Belcher's theory of the case - the theory that  



                                                                                                                                       

was argued to the jury - was that he paid for the items before exiting the store, not that  



                                                                                                                                 

Brown misidentified him.  The evidence thus had no relevance as to Belcher's identity  



                                                                      

and should not have been admitted on this basis.  



                                                                                                                                    

                      The superior court also admitted the evidence of Belcher's prior theft under  



                                                                  

the theory that it tended to prove intent.  



                                                                                                                                          

                      Intent  may  become  an  issue  in  a  shoplifting  case  if,  for  example,  a  



                                                                                                                                

defendant claims that he merely forgot to pay for an item, or that he intended to re-enter  



                                                                                                                                       

the store to pay.   But here Belcher's attorney argued something quite different:   the  



              

defense attorney asserted that Belcher's statements to the loss-prevention officer were  



                                                                                                                                 

correct, and that he had in fact paid for the goods.  Thus, the attorney argued a defense  



                                                                                                                                              

to the actus reus of the crime of theft (taking goods without paying) rather than to the  



                                                            4  

                                              

mens rea element (intent to deprive). 



                                                                                                                                          

                      When the prosecutor delivered her summation to the jury, she referred to  



                                                                                                                                       

Belcher's  prior  conviction  as  relevant  to  "intent."                              But  a  close  examination  of  the  



                                                                                                                                     

prosecutor's argument shows that she asked the jurors to infer, from Belcher's prior  



                                                                                                                                       

crime, that he had the capacity to form the intent to steal - in other words, that he had  



                              

the character of a thief:  



     3     See Coleman v. State, 621 P.2d 869, 874-75 (Alaska 1980); Moor v. State , 709 P.2d  



498, 506 (Alaska App. 1985) ("[T]he issue upon which the [404(b)(1)] evidence is offered  

must be truly disputed in the case.").  



     4     AS 11.46.100(1).  



                                                                  -  6 -                                                             2499
  


----------------------- Page 7-----------------------

                                          [H]ow do we know that the defendant is                                                 capable of   

                            forming [the] intent to deprive ... another of their property[?]                                                             

                            ...     [T]hat's   one   of   the   limited   reasons   you   can   look   at  

                            [Belcher's] other conviction.                                (emphasis added)   



Effectively,   the   prosecutor   employed  the   superfluous   issue   of   "intent"   to   inject  



propensity evidence into the case.                                     Offered for this purpose - to show that Belcher was                                                 



capable   of   forming   an   intent  to  steal   -   the   evidence   proved   nothing   beyond   his  



propensity to shoplift and therefore was squarely proscribed by Alaska Evidence Rule                   



404(b)(1).   



                            The   State   alternatively   argues   that   evidence   of   Belcher's   prior   theft  



conviction was properly admitted to prove a common scheme or plan.                                                                               In support of its            



                                                                                         5  

argument, the State relies on                              Cohen v. State               .                                                                     

                                                                                             In Cohen, this Court upheld the admission  



                                                                                                                                                                               

of prior bad acts evidence when the evidence was probative as to a distinctive pattern of  



                                                                                                                                                                               

criminal behavior - "Cohen had repeatedly engaged in a distinctive set of grooming or  



                                                                           6  

                                                                                

courtship rituals with teenage girls." 



                                                                                                                                                                               

                            But the State alleged no such distinctive pattern of conduct in this case.  In  



                                                                                                                                                                      

fact, to the extent the instant charge involved a unique plan of action - using the DVDs  



                                                                                                    

as an alarm system decoy to steal the television and Blu-ray DVD player - there was  



                                                                                                       

no evidence that the prior crime involved similar conduct.  



                                                                                                                                                             

                            And as this Court explained in Bolden v. State, "[t]o be properly admissible  



                                                                                            

under Rule 404(b) it is not enough to show that each crime was 'planned' in the same  



                                                                                                                                                                                 

way; rather, there must be some overall scheme of which each of the crimes is but a  



       5      2014 WL 5799224 (Alaska App. Nov. 5, 2014) (unpublished).  



       6      Id.  at *8; see also Smithart v. State, 946 P.2d 1264, 1269-73 (Alaska App. 1997),   



rev'd on other grounds, 988 P.2d 583 (Alaska 1999).  



                                                                                    -  7 -                                                                                2499
  


----------------------- Page 8-----------------------

                                7  

part."   Here, there was no such overarching scheme.                                                                                                                                                                                                                                                    The judge erred in admitting the                                                                                                                                       



prior offense as tending to prove scheme or plan.                                                                                                                                                                                                                                  



                                                                          As   yet   another   alternative   ground   of   relevance,   the   State   asserts   that  



Belcher's prior theft conviction tended to prove an absence of accident or mistake.                                                                                                                                                                                                                                                                                                                                                                                            



                                                                          In the trial court, the prosecutor argued that Belcher's prior shoplifting                                                                                                                                                                                                                                             



 conviction was admissible because it tended to "disprove[] a mistake that [Belcher]                                                                                                                                                                                                                                                                                                                                                      



 simply threw out the receipt there while at the store."                                                                                                                                                                                                                                                   



                                                                           This was a misuse of the word "mistake" - which, in the context of                                                                                                                                                                                                                                                                                                                                     



Evidence Rule 404(b)(1), refers to conduct that is unwitting or that is performed as a                                                                                                                                                                                                                                                                                                                                                                                                   



result of a misunderstanding.                                                                                                                                             The prosecutor was not arguing that Belcher made a                                                                                                                                                                                                                                                            



mistake  when he said that he had thrown away the receipt for the merchandise.                                                                                                                                                                                                                                                                                                                                                                      Rather,  



the prosecutor was arguing that Belcher's prior theft conviction tended to prove that he                                                                                                                                                                                                                                                                                                                                                                                                           



 lied  when he said this.                                                                                                   This argument rested wholly on an inference based on Belcher's                                                                                                                                                                                                                                                



 character - the purpose forbidden by Evidence Rule 404(b)(1).                                                                                                                                                                                                                                                                                                          



                                                                          After hearing the prosecutor's argument, the judge ruled that the evidence                                                                                                                                                                                                                                                                                           



 of Belcher's prior theft conviction was relevant to the issue of "mistake."                                                                                                                                                                                                                                                                                                                                                  But we are                                      



unable to tell from the record if the judge adopted the prosecutor's mistaken concept of                                                                                                                                                                                                                                                                                                                                                                                            



mistake, or if the judge had something else in mind.                                                                                                                                                                                                           



                                                                           On appeal, the State recasts the issue.                                                                                                                                                                             The State argues that evidence of                                                                                                                                                    



Belcher's   prior   theft   was   relevant   to   rebut   a   claim   of   "mistake"   because,   at  trial,  



Belcher's attorney argued that anyone who believed that Belcher was trying to steal the                                                                                                                                                                                                                                                                                                                                                                                        



Walmart electronics was laboring under a mistake.                                                                                                                                                                                                                                            



                                                                           The                              State's                                          proposed                                                       formulation                                                                  of                     "mistake"                                                         is                   based                                      on                       a  



misunderstanding of Alaska Evidence Rule 404(b)(1).                                                                                                                                                                                                                                                            When this evidence rule speaks                                                                                                              



                   7                 Bolden v. State, 720 P.2d 957, 961 n.2 (Alaska App. 1986).  



                                                                                                                                                                                                                                    -  8 -                                                                                                                                                                                                                               2499
  


----------------------- Page 9-----------------------

of "mistake," it is not referring to a defense claimthat anyone who believes the defendant                                                                                    



to be guilty is mistaken. Rather, when Rule 404(b)(1) speaks of "mistake" it is referring                                                                                       



to   a   defense   claim   that   the   defendant's   conduct  was  performed   unwittingly   or  



accidentally, or under a misapprehension of the circumstances.                                                                                  



                              For instance, in                   Adkinson v. State                     , the defendant was tried for manslaughter                     



after he shot and killed a trespasser. The defendant asserted that he did not intentionally                                                                            



point   his   firearm   at   the   victim   -   that   if   he   pointed   the   gun   at   the   victim,   it   was  



                           8  

inadvertent.                                                                                                                                                                          

                                 The supreme court concluded that, given this defense, the trial judge  



                                                                                                                                                                              

properly allowed the State to introduce evidence of prior incidents where the defendant  



                                                                      9  

                                             

pointed firearms at trespassers. 



                                                                                                                                                                                               

                              Similarly, in Lewis v. State, the defendant was charged with escape after he  



                                                                                                                                                                                       

left a residential corrections center.  At trial, the defendant argued that he was not guilty  



                                                                                                                                                                                                10  

                                                                                                                                                                                                      

because he mistakenly believed that he had received permission to leave the center. 



                                                                                                                                                                                               

This Court held that, given this defense, the trial judge properly allowed the State to  



                                                                                                                                                     11  

                                                                                                                                                          

introduce evidence of the defendant's prior conviction for escape. 



                                                                                                                                                                        

                              See also Khan v. State, where the defendant was on trial for fraudulently  



                                                                                                                                                                                   

misrepresenting his assets when he applied for court-appointed counsel. Khan's defense  



                                                                                                                                                                                        

at trial was a combination of mistake and innocent intent: his attorney argued that Khan  



                                                                                                                                                                                              

was emotionally distraught at the time he filled out the financial affidavit, and that he  



                                                                                                                                                                                   12  

                                                                                                                                                                                         

either mistakenly or carelessly declared that he had no income and no assets.                                                                                                            This  



        8      Adkinson v. State , 611 P.2d 528, 531 (Alaska 1980).  



        9      Id. at 532.  



        10     Lewis v. State , 312 P.3d 856, 859 (Alaska App. 2013).  



        11     Id.   



        12     Khan v. State, 204 P.3d 1036, 1039 (Alaska App. 2009).  



                                                                                            -  9 -                                                                                       2499
  


----------------------- Page 10-----------------------

Court held that the trial judge properly allowed the State to introduce evidence of Khan's                                                      

prior fraudulent claim for unemployment benefits.                                          13  



                                                                                                                                     

                        Belcher made no such claim of mistake - no claim that he inadvertently  



                                                                                                                                                    

failed to pay for the electronics or that he mistakenly believed that he had paid for them  



                                                                                                                                                      

when, in fact, he had not.  Rather, as we explained above, Belcher asserted that he had  



                                                                                                                

paid for the items and that the State was simply wrong when it alleged that he had not  



                             

paid for them.  



                                                                                                                                            

                        Accordingly, the trial judge erred when she admitted evidence of Belcher's  



                                                                         

prior theft under a theory of "mistake."  



                                                                                                                                             

            A deeper look at the admissibility of past-misconduct evidence based on its  

                                                                                

            purported similarity with the present crime  



                                                                                                                                                   

                        The judge in this case found the "pattern" of Belcher's prior theft to be  



                                                                                                                                           

"almost [identical to] what [is] alleged now in this case."  She employed this perceived  



                                                                                                                                              

similarity to justify admission of the prior shoplifting for the issues of identity, mistake,  



                                                                                                                                                      

and common scheme or plan.  But the judge could not meaningfully compare the two  



                                                                                                                                                 

crimes because neither she nor the prosecutor knew how Belcher committed the earlier  



                                                                                                                                               

theft. Belcher was not arrested at the scene of that earlier crime, nor in the act of stealing  



                                                                                                                                   

the merchandise.  Rather, he was later found in possession of the stolen merchandise.  



                                                                                                                                               

                        As  the  judge  noted,  in  both  instances  Belcher  had  no  receipt  for  the  



                                                                                                                                                 

merchandise.  But his proffered explanations were significantly different:  in the earlier  



                                                                                                                                                         

episode, he claimed that he did not keep the receipt because the items were intended as  



                                                                                                                                                    

Christmas presents; as to the Walmart electronics, Belcher said that if the goods later  



                                                                                                                                       

proved to be defective, he intended to pawn them rather than return them.  



      13    Id.   



                                                                         -  10 -                                                                    2499
  


----------------------- Page 11-----------------------

                                         Thus, the trial judge had no basis for concluding that these two thefts                                                                                                                                      



constituted related manifestations of a single scheme or plan, or that the prior theft                                                                                                                                                                   



demonstrated anything about Belcher's intent during the Walmart episode.                                                                                                                                                                    The two   



thefts were linked only by a feature common to most thefts:                                                                                                                             the absence of a receipt.                          



                                         The judge's ruling was essentially based on the premise that if Belcher was                                                                                                                                         



the kind of person who would commit theft before, then it was more likely that he was                                                                                                                                                                       



guilty of theft now.                                         But as this Court explained in                                                                Smithart v. State                                   , "[i]f evidence has                           



no genuine purpose other than to show the defendant's character and the consequent                                                                                                                                                   



likelihood that the defendant acted in conformity with that character during the episode                                                                                                                                                         

being litigated, then Rule 404(b)(1) declares that the evidence shall not be admitted."                                                                                                                                                                             14  



                                                                                                                                                                                                                                   

                     The  trial  judge's  obligation  when  the  government  wishes  to  offer  

                                                          

                    prior-crime evidence  



                                                                                                                                                                                                                              

                                         More than thirty years ago, in Moor v. State, this Court optimistically  



                                            

predicted that if we required the State to give advance notice of its intent to offer Rule  



                                                                                                                                                                                                                                            

404(b) evidence, such notice would guarantee that "the trial court [would] carefully  



                                                                                                                                                                                                  15  

                                                                                                                                                                                                                                                    

scrutinize the proffered reasons for the use of the evidence."                                                                                                                                               Trial judges would  



                                                                                                                                                                                                                                                         

thereby require the State to demonstrate that the evidence had "[true] relevance apart  



                                                       16  

                 

from propensity." 



                                                                                                                                                                                                                                                    

                                         But Moor 's requirement of advance notice is only effective if trial judges  



                                                                                                                                                                                                                                                        

subject  the  government's  offer  of  proof  to  rigorous  examination.                                                                                                                                                  Evidence  Rule  



                                                                                                                                                                                                                                                              

404(b)(1) can be difficult to apply.   Often, the difficulty arises because many of the  



           14       Smithart, 946 P.2d at 1270-71.  



           15       Moor v. State , 709 P.2d 498, 506 (Alaska App. 1985).  



           16       Id.    



                                                                                                                           -  11 -                                                                                                                         2499
  


----------------------- Page 12-----------------------

 words usedin Rule404(b)(1) -"intent,""motive,""plan,""knowledge,"and"mistake"                                                                                                                                                                                    



 - must be understood in a limited technical sense, rather than in the broader sense in                                                                                                                                                                                                     



 which they are used in everyday speech.                                                                                                   



                                             Mindful   of   these   terms   of   art,   the   judge   must   carefully   analyze   the  



 prosecutor's offer of proof in light of the facts of the defendant's specific case - both                                                                                                                                                                                          



 the evidence presented and the way in which the case is being argued by the parties. The                                                                                                                                                                                             



judge's task is to determine (1) whether the prior-crime evidence is relevant to an issue                                                                                                                                                                                         



 that is actually contested and, if so, (2) whether the prior-crime evidence is genuinely                                                                                                                                                                        



 relevant   for   a   purpose   other   than   to   establish   that   the   defendant   characteristically  



 commits the type of offense charged.                                                                                          



                        Why we conclude that the erroneous admission of Belcher's prior theft                                                                                                                                                                                  

                       was harmless   



                                              In the case of a non-constitutional evidentiary error, this Court will only                                                                                                                                                          



                                                                                                                                                                                      17  

 reverse if the error "appreciably affected the verdict."                                                                                                                                                                                                                 

                                                                                                                                                                                               Here, the State's case against  



                                                                                                                                                                                                                                                                                     

 Belcher  was  overwhelming.                                                                              At  trial,  the  State  introduced  surveillance  video  that  



                                                                                                                                                                                                                                                                                     

 depicted Belcher's activities in the store, including his selection ofthetelevisionand then  



                                                                                                                                                                                                                                                                                    

 the Blu-ray DVD player.  Of the twelve minutes that Belcher remained in the store after  



                                                                                                                                                                                                                                      

 he selected the television, he is visible in the footage for all but one minute and thirty- 



                                                

 five seconds.  



                                                                                                                                                                                                                                                                                        

                                              Though it is theoretically possible that Belcher could have purchased the  



                                                                                                                                                                                                                                                                          

 television during this gap in the footage, the State rebutted this possibility in several  



                                                                                                                                                                                                                                                                                         

 ways. The incident occurred on "Black Friday" - the most chaotic shopping day of the  



                                                                                                                                                                                                                                                                                         

 year - making it unlikely that Belcher could have checked out that quickly.  Indeed the  



            17         Love v. State , 457 P.2d 622, 634 (Alaska 1969).  



                                                                                                                                        -  12 -                                                                                                                                     2499
  


----------------------- Page 13-----------------------

video  showed  that  the  store  was  extremely  busy.                            And  the  loss-prevention  officer  

                                                                                                                         



testified that he searched the store's computer system and found no record of a customer  

                                                                                                                      



purchasing the television and the Blu-ray DVD player while Belcher was in the store.  

                                                                                                                                    



                    Further, Belcher's statements to the loss-prevention officer significantly  

                                                                                                                 



undermined his theory of the case. Reasonable jurors could conclude that Belcher would  

                                                                                                                           



not purchase an expensive electronics item without retaining the receipt in case the item  

                                                                                                                              



did  not  function  properly.                Reasonable  jurors  could  also  conclude  that  Belcher's  

                                                                                                                     



purported intention to pawn the television if it did not function properly was not credible.  

                                                                                                                       



                    We conclude that, in light of the overwhelming evidence of Belcher's guilt,  

                                                                                                                             



the erroneous admission of Belcher's prior shoplifting conviction did not appreciably  

                                                                                                                  



affect the jury's verdict.  

                                      



          Conclusion  



                    We AFFIRM the judgment of the superior court.  

                                                                                       



                                                             -  13 -                                                         2499
  

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